Transcript class five october 6, 2008

Chapter 12
Crimes Against Public
Morals
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OBSCENITY
Obscene material is any work—when applying
contemporary community standards—that appeals to
prurient interests, depicts or describes sexual
conduct in a patently offensive way, and lacks serious
literary, artistic, political, or scientific value. The crime
of obscenity punishes the sale, possession, or
distribution of obscene material.
 Mens rea: Defendant must intend to sale, possess, or
distribute obscene material.
 Actus reus: The actual sale, possession, or distribution of
the obscene material.
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CHILD PORNOGRAPHY
Even though an image may not be considered
obscene if it was of an adult, it is child pornography if
the image necessarily harms a child.
 Court limits images to real children, not virtual images.
 Sufficiency of evidence is not the “bright line” test, but on
the record as a whole.
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OBSCENITY vs. PORNOGRAPHY
Obscenity and pornography are often used
interchangeably; but, the law views them very
differently.
 Obscene Material: Is sexual material that falls outside the
protections of the First Amendment and its sale, possession,
and distribution may be punished as a crime.
 Pornography: Is sexual material protected by the First
Amendment, and its sale, possession, and distribution may
not be punished as a crime.
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PROSTITUTION
The world’s oldest profession, prostitution is quite
simply the exchange of sex for money or property
(commercial gain). Either soliciting or engaging in
prostitution is a crime.
 Mens rea: The intent to either solicit or engage in sexual
activity for money or property (commercial gain).
 Actus reus: Either the actual solicitation (for “The John”) or
the actual sexual activity (for the prostitute).
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PROSTITUTION & HIV/AIDS
While a crime, prostitution is pretty much a low level
misdemeanor. Historically, rarely has anyone spent
any length of time in jail for this crime. But, in the last
two decades, the rise of HIV/AIDS in prostitutes has
brought renewed attention to this crime. All states now
have laws dealing with prostitutes who engage in
prostitution knowing they are HIV+. Prostitution with
HIV is generally a felony punishable by one to five
years in prison.
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GAMES OF CHANCE
Games of chance, gaming, or simply gambling, is a
crime that is supported and enjoyed by a very large
segment of the American population.
Gambling
crimes are numerous, but they may be summed-up as
“staking or risking something of value upon the
outcome of a game, which is based upon an element
of chance.”
 Mens rea: The intent to either stake or take something of
value, based upon the outcome of a game of chance.
 Actus reus: Either the actual staking or the taking of the item
of value.
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GAMES OF CHANCE—Special Issues I
While all states and the federal government have
gambling crimes, the popularity of gambling as a form
of entertainment means most states allow some form
of legalized gambling. Be it casino gambling, slotmachines, lotteries, horse racing, or even dog racing,
“games of chance” are being legalized at an ever
growing rate. In addition to bowing to the will of the
people, government regulated “games of chance” also
have the benefit of raising substantial public revenues.
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GAMES OF CHANCE—Special Issues II
While most gambling activities are regulated by state
laws, the federal government has recently increased
its attempts to control two specific types of gambling.
 Internet Gambling: Most of the online “gaming sites” are located on
computers offshore or in other countries, but since the gambling
(transfer of money) crosses state/national borders, the federal
government has exclusive jurisdiction of this type of gambling.
 Collegiate Gambling: The only place where it is legal to wager on
college sports is in Nevada. Collegiate gambling, however, is a multibillion dollar business, spread across the entire United States. Due to its
detrimental impact on both the integrity of amateur sporting contests and
on the student-athletes involved, the federal government has been
stepping-up its fight against illegal collegiate gambling.
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PUBLIC CORRUPTION
Extortion and bribery are the traditional crimes of
public corruption. Already covered in chapter nine,
these public corruption crimes generally involve the
attempt to extract money or property from another, by
the misuse of public office.
 Bribery: Doing, or not doing, an act within the scope of the
public official’s duties.
 Extortion: Involves the illegal payment for doing a lawful act
within the scope of the public official’s duties.
 Under color of law: action taken and made possible only
because the wrongdoer is clothed in the authority of law.
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Chapter 13
Narcotics and Alcohol
Offenses
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NARCOTIC OFFENSES & DRUG PROBLEMS
Narcotic offenses are not new to society, but in the last
three decades the drug problem has become a major
part of the federal, state, and local war on crime.
Consider the following statistics:
 More than half of all persons arrested for a crime will test
positive for at least one banned drug.
 More than half of all probationers have a drug abuse
problem.
 Drug abusers have a higher recidivism rate than other
offenders.
 There is a scientifically proven link between drug use and
violent crimes.
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TYPES OF DRUGS
There are numerous types of drugs. While they all function
differently, for the drug user they all share one commonality:
they change the way the user feels.
 Central Nervous System Stimulants: Increase the functioning of the
central nervous system. These drugs generally produce euphoria,
excitement, and restlessness.
 Central Nervous System Depressants: Decrease the functioning of the
central nervous system. These drugs tend to produce euphoria,
inhibition, and impairments of mental and physical skills.
 Hallucinogens: Interact with the cerebral cortex to produce sensory
hallucinations.
 Narcotic Analgesics: Depress the central nervous system to relieve pain,
without producing the loss of consciousness.
 Cannabis: Probably the most popular illegal recreational drug, cannabis
sativa also effects the cerebral cortex and produces a euphoric high.
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POSSESSION & POSSESSION FOR SALE
Be it for personal use or for sale, the unlawful
possession—or exercising control over—a controlled
substance is a crime. Possession for sale generally
has a harsher punishment than simple possession.
 Mens rea: Defendant must either intend to possess or
possess with the intent to sale a controlled substance.
 Actus reus: Defendant must unlawfully possess a usable
form of the controlled substance. Where the charge is
possession for sale, the usable amount must be in excess of
what is normally consumed by a single individual.
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POSSESSION—Special Issues
The mere presence of a person where a controlled
substance is present is insufficient to establish the
intent to posses the controlled substance. Instead, it
must be proven the person had knowledge of the
controlled substance and intended to possess it.
Courts will look to the following factors indicating
possession:
 Incriminating statements linking the defendant to the drugs.
 Defendant’s incriminating or suspicious behavior.
 Defendant’s drug history.
 Defendant’s proximity to the drugs at the time of arrest.
 Defendant’s exclusive control over the area where the drugs were found.
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SALE OF A CONTROLLED SUBSTANCE
Just because a person does not have possession,
they are not immune from prosecution if they intend to
sale a controlled substance.
 Mens rea: Defendant must intend to sale or transfer
possession of a known controlled substance.
 Actus reus: The act of unlawfully selling or transferring
possession of a controlled substance.
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MEDICAL MARIJUANA LAWS
As of 2008, twelve states permit the use of medical
marijuana.
 California and Washington enacted the first of their kind in
1996.
 None of the state laws require employers to allow patients
to smoke marijuana on the job.
 Use of marijuana is still prohibited at the federal level.
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ALCOHOL OFFENSES & PROBLEMS
Once looked upon as “victimless” crimes, the rise in
deaths from drivers operating motor vehicles while
intoxicated has elevated the public’s awareness and
contempt for “drunk driving” and alcohol-related
offenses. Every year over one million drivers are
arrested for driving under the influence. How many do
you think are not caught?
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PUBLIC DRUNKENNESS
Among the oldest of America’s public nuisance
offenses, we have come to accept public
drunkenness as a disease. Inasmuch, in order to
treat instead of punish, some jurisdictions do not
classify public drunkenness as a criminal offense.
The vast majority, however, still do.
 Mens rea: A malum prohibitum offense, there is no element
of intent necessary. Public drunkenness is made unlawful
by statute, for the public welfare.
 Actus reus: The act of being intoxicated in a public place,
to the degree that one is unable to care for oneself.
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DRIVING UNDER THE INFLUENCE
Every jurisdiction in America prohibits driving a motor
vehicle while under the influence of alcohol or drugs.
Of such a concern, some jurisdictions even prohibit
operating bicycles, lawnmowers, and even animals
while under the influence.
 Mens rea: Defendant must intend to drive or operate a
motor vehicle while voluntarily under the influence of
alcohol or drugs.
 Actus reus: The driving or operation of the motor vehicle
upon a public street or highway.
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BLOOD ALCOHOL LEVEL
Driving under the influence does not require the
same degree of drunkenness as the crime of public
drunkenness. Driving under the influence statutes
generally only require an impairment of motor vehicle
skills. The most common method of proving such an
impairment is through the defendant’s blood alcohol
level (BAL). A medical term, BAL translates into the
ability or fitness to operate a motor vehicle based
upon several broad categories, or zones, of
impairment. Most states presume alcohol influence
at a BAL level of .08 to .10.
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BLOOD ALCOHOL LEVEL—Effects
 .02 to .04: Pleasant feelings. A sense of warmth and well being. Very
relaxed and happy. Only a slight impairment of motor skills.
 .06 to .08: Lowered impairment, impaired judgment, and definite
muscle coordination impairment. Slower reaction times.
 .10 and greater: Clear deterioration of coordination and reaction time.
Noticeable depression of motor and sensory skills. Possible loss of
consciousness.
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FLEX YOUR RIGHTS
Chapter 14
Special Crimes
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SPECIAL CRIMES & OFFENSES
Often overlooked in the study of criminal law are
those crimes that involve children, the elderly, and
spouses. Traditionally, criminal acts against these
groups are lumped into the crimes we have already
discussed; but recently, more jurisdictions have been
protecting the aforementioned groups by designating
special punishments for offenses committed against
children, the elderly, and spouses.
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CHILD ABUSE—Physical Abuse
Physical child abuse may be defined as any act that
results in the non-accidental physical injury by a
person who has care, custody, or control of a child.
 Act Must Be Intentional: An accidental injury does not qualify as abuse.
Children have accidents and get hurt all the time, that’s the nature of life.
 Physical Injury: The act must result in a physical injury that can be
proved or documented. Yelling, emotional pain, or simple spanking
does not qualify as an injury for the purposes of child abuse.
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CHILD ABUSE—Child Neglect
Child neglect is the negligent treatment or
maltreatment of a child by a parent or caretaker under
circumstances indicating harm or threatened harm to
the child’s health or welfare.
 Physical or Emotional Harm: Child neglect covers much more than
physical abuse, emotional harm dangerous to a child’s health or welfare
is also covered.
 Act or Omission: Child neglect requires an injury or harm resulting from
an act or omission. The act or omission must be more than momentary,
but less than gross.
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CHILD ABUSE—Sexual Abuse
Child sexual abuse is: 1) sexual activity with children;
or 2) the sexual exploitation of children. Child sexual
abuse includes rape, but is not limited to just rape.
 Intra-familial Sexual Abuse: Includes incest and refers to any type of
exploitative sexual contact occurring between relatives.
 Extra-familial Sexual Abuse: Refers to exploitative sexual contact with
non-familial perpetrators who may be either known or unknown to the
child.
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ELDER ABUSE
With a quickly growing population of those aged 65 or
older, the mistreatment of the elderly has garnished
much attention. Elder abuse is generally divided into
five categories:
 Physical Abuse: Includes the infliction of physical pain or injury, physical
coercion, sexual molestation, or physical restraint.
 Psychological Abuse: Includes the infliction of mental anguish.
 Material Abuse: Includes the illegal or improper exploitation and/or use
of funds or resources.
 Active Neglect: Includes the refusal or failure to undertake a caretaking
obligation.
 Passive Neglect: Includes the refusal or failure to fulfill a caretaking
obligation.
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ELDER ABUSE—Sexual Assault and Violent Crimes
Elders are among the least likely to be raped or
physically injured during the commission of violent
crimes; but, when they are injured, their age and frailty
tend to make their injuries much more serious.
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ELDER ABUSE—Fraud & Burglary
1)
Fraud: The elderly are targeted for crimes
involving finances more than any other victim
population. A lifetime of savings combined with the
ownership of a home makes for a tempting target.
2) Burglary: As the elderly grow older, their homes
become the center of their universe. Once
their
home has been invaded, they may
never feel safe
again. Burglary is often the most
injurious crime
an elder may face.
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SPOUSAL ABUSE
Spousal abuse is any intentional act or series of acts
that cause injury to a spouse. Spousal abuse is
gender neutral and may occur to a male or female.
Additionally, this abuse applies to those who are
married, cohabitating, involved in a serious
relationship, or who are separated and living apart.
 Physical Abuse: Includes acts of striking, throwing or destruction of
property, control or choking acts, repeated beatings, and humiliation
violence.
 Sexual Abuse: Includes sexual acts the humiliate or degrade, violence
during sexual acts, and sex after a physical altercation.
 Emotional Abuse: Includes verbal dominance, isolation, guilt, fear,
humiliation, and financial dependence.
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